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declining to extend continuing tort doctrine to defamation claims and stating that New Jersey courts "have only applied it to hostile work environment claims under the Law Against Discrimination, and continuing nuisance claims"
Summary of this case from Westberry v. State Operated Sch. Dist. of Newark & Superintendent Cami AndersonOpinion
DOCKET NO. A-1563-14T4
07-26-2016
DONNA ROBERTS and DAWN ABRAMS, Plaintiffs-Appellants/Cross-Respondents, v. CLIFFORD S. MINTZ, Defendant-Respondent/Cross-Appellant.
Mark J. Molz argued the cause for appellants/cross-respondents. Garen Meguerian argued the cause for respondent/cross-appellant. Hartman & Winnicki, PC, and Eugene Volokh (Scott & Cyan Banister First Amendment Clinic, UCLA School of Law) of the California bar, admitted pro hac vice, attorneys for amicus curiae Public Citizen, Inc. (Daniel Schmutter and Mr. Volokh, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1658-10. Mark J. Molz argued the cause for appellants/cross-respondents. Garen Meguerian argued the cause for respondent/cross-appellant. Hartman & Winnicki, PC, and Eugene Volokh (Scott & Cyan Banister First Amendment Clinic, UCLA School of Law) of the California bar, admitted pro hac vice, attorneys for amicus curiae Public Citizen, Inc. (Daniel Schmutter and Mr. Volokh, on the brief). PER CURIAM
Plaintiffs Donna Roberts and Dawn Abrams appeal from the summary judgment dismissal of their defamation complaint, the award of sanctions against them and their attorney, and the denial of their cross-motion for summary judgment and injunctive relief. Defendant Clifford S. Mintz cross-appeals from the sanctions award.
We affirm summary judgment on the ground that some of the allegedly defamatory statements were time-barred, and the remainder were non-actionable opinion and hyperbole. We reverse the fee sanction, however, as defendant failed to show that plaintiffs' claims were frivolous.
I.
We discern the following facts from the record, viewed in the light most favorable to plaintiffs as the non-movants. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In August 2008, defendant bought what he believed was a purebred Havanese dog from plaintiffs. One of the plaintiffs had represented to defendant that the dog was a healthy, nine-month-old, purebred Havanese. After taking the dog home, defendant allegedly learned from veterinarians that the dog was actually two years old, was not a purebred Havanese, and suffered from various health problems. He named the dog "Moose."
Later in August, defendant confronted plaintiffs with these findings, which they denied. Plaintiffs offered to refund his money in exchange for Moose, but defendant insisted on keeping Moose in addition to a refund. He claimed he had spent $800 in veterinary fees and had become fond of Moose. Plaintiffs refused.
Beginning in September 2008, defendant aired his dissatisfaction with plaintiffs in a series of posts on his personal blog titled "Rants and Raves," which appears on his personal website, www.biojobblog.com. His posts, in addition to relating his personal experience with plaintiffs, disclosed what he claimed to have learned about plaintiffs from other pet owners, pet activists, and public records. He also frequently referred to plaintiffs as "dog grifters," "scammers," "nefarious," and "amoral and unethical scumbags."
We need not review at length defendant's posts, as plaintiffs' complaint is limited to six statements. The first two were made in a September 1, 2008 post, which described defendant's purchase and asserted that plaintiffs misrepresented Moose's age, breed, and health. Plaintiffs challenged the statement that "Dawn Abrams fraudulently sold [defendant] a dog named 'Moose.'" The second alleged defamatory remark in this post was the statement, "we learned that Grace Abrams is a member of a notorious ring of South Jersey dog grifters run by her mother Donna Roberts who in 2007 was found guilty under [New Jersey] Statute 4:22-26L on three of five counts of animal cruelty." At the conclusion of this post, defendant wrote that his goal was to "shut down the operations run by" plaintiffs.
The complaint did not attribute this statement to a particular blog post, nor does the record reflect that defendant made this statement verbatim. Rather, it is evident that plaintiffs were referencing and summarizing statements defendant made in the September 1 post.
We quote directly from the September 1 blog post, since the complaint misquoted the post.
In the "comments" section at the bottom of this post, two people who identified themselves as "grace" and "Donna Roberts" left comments denying the allegations about Moose and calling defendant a "liar" and a "jerk." "Donna Roberts" told defendant to "can your bullshit" and claimed that defendant was "shoved up the ass" of another of plaintiffs' critics, whom she called "the Hitler of the dog world" who used "Nazi tactics." "Donna Roberts" also stated that defendant suffered from "rage syndrome," a behavioral condition that afflicts canines.
On February 27, 2009, in a post titled, "The Dark Underside of New Jersey Dog Breeders: Revisited," defendant wrote, "For the past year or so, I have been dealing with Donna Roberts, a so-called dog breeder who recently was convicted in New Jersey on three counts of animal cruelty." The next allegedly defamatory remark appeared in an April 7, 2010 post, in which defendant stated, "The Vincentown address is where Dawn Roberts lives in a run down farmhouse with 6 children." This is a reference to the house where defendant bought Moose.
Defendant ratcheted up the rhetoric in his next two posts. In an April 27, 2010 post titled, "The Dog Grifters: Donna Roberts and Dawn Abrams Strike Again," defendant wondered how "these despicable human beings" "think that they can continue to get away with ripping people off . . ." Plaintiffs challenge a section of the following sentence where defendant declares, "eventually we will be able to shut down their fraudulent puppy mill ring! To that end, please pass the information along that nobody ought to buy dogs from these grifters!" The final post in this series was a May 3, 2010 entry titled, "Donna Roberts Responds: I am Innocent of All Charges — The Rest of the World is Guilty." Here he writes, "I frequently get messages from others, who, like me, were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them."
Plaintiffs filed their complaint on May 18, 2010. On July 16, 2010, defendant filed a motion for summary judgment in lieu of an answer. The same day, defendant's counsel served on plaintiff's counsel a "safe harbor letter" pursuant to Rule 1:4-8 demanding that plaintiffs withdraw their complaint.
The complaint included a claim of false light, which is not at issue on appeal.
Plaintiffs filed a cross-motion for summary judgment, although none of the papers filed in support of their cross-motion were provided to us. Plaintiffs also sought an order restraining defendant from defaming plaintiffs.
The court issued a written decision granting defendant's motion and denying plaintiff's cross-motion. The court found that the statements published before May 18, 2009 were time-barred, and rejected plaintiffs' argument that the statute of limitations was tolled because defendant committed a continuing wrong. The court found that defendant's remaining statements were opinions, epithets, and hyperbole, and were not sufficiently factual to be actionable. The court also held that defendant's statements involved a matter of public concern, such that plaintiffs were required to prove actual malice. The court found plaintiffs had not met this burden, as there was enough evident truth to defendant's statements to preclude a finding of actual malice. To this end, the court largely credited the assertions in defendant's certification that Moose was in poor health, was two years old when defendant bought him, and was not a purebred Havanese.
On October 27, 2010, defendant filed a notice of motion for sanctions against plaintiffs' counsel pursuant to Rule 1:4-8, and against plaintiffs pursuant to N.J.S.A. 2A:15-59.1. Although the notice of motion referenced a certification of counsel, the record does not include one. The appendix includes what appears to be a copy of defense counsel's bills, totaling $49,732.50 in fees for work performed between June 24, 2010 and October 25, 2010, at an hourly rate of $285. At oral argument on the sanctions motion, plaintiffs contended that the motion was not supported by a proper certification, the amount sought was excessive, and defendant was not entitled to fees incurred before he sent the July 16, 2010 safe harbor letter.
In a written opinion issued October 16, 2014, the court awarded defendant $25,000 in fees and costs. The court found plaintiffs' claims were frivolous under Rule 1:4-8 and N.J.S.A. 2A:15-59.1 because the complaint "was filed without sufficient evidentiary support, several of the claims were beyond the statute of limitations, and it was not a good faith effort to reverse existing law." To find that the claims were frivolous, the court reiterated its reasons for granting summary judgment.
With respect to the amount of fees, the court found that defense counsel's hourly rate and billing entries were reasonable, but concluded it was "not fair or reasonable" to require plaintiffs to be responsible for that amount. The court reduced the fee award to $25,000, finding that that amount was "fair and reasonable" based on "the time and labor required, the novel issue of the application of the statute of limitations to internet postings and the question of whether each posting is a separate event, and the results obtained . . ." The court's order made the plaintiffs and their counsel jointly liable.
On appeal, plaintiffs argue that the case was not ripe for summary judgment, none of their claims were barred by the statute of limitations, and that defendant's statements were actionable, and were made with actual malice. Plaintiffs also contend they raised novel issues of law, and therefore defendant was not entitled to an award of fees. Plaintiffs also appeal from the denial of their request for a preliminary injunction and cross-motion for summary judgment. Defendant urges us to affirm summary judgment, but contends that the court abused its discretion in reducing the award of fees.
II.
We first consider the summary judgment dismissal of plaintiffs' complaint. We review the grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We must determine whether the competent evidence presented, "when viewed in the light most favorable to the non-moving party, [is] sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. We also review the trial court's legal conclusions de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); including whether the statute of limitations applies, Churchill v. State, 378 N.J. Super. 471, 478 (App. Div. 2005), and whether a statement is defamatory, Ward v. Zelikovsky, 136 N.J. 516, 529 (1994).
A.
At the outset, we reject plaintiffs' argument that summary judgment was premature. Our courts favor early consideration of summary judgment motions in defamation cases:
On the one hand, in deciding whether to grant summary judgment, a court should proceed cautiously when presented with an incomplete record. On the other hand, a timely grant of summary judgment in a defamation action has the salutary effect of discouraging frivolous lawsuits that might
chill the exercise of free speech on matters of public concern.
[G.D. v. Kenny, 205 N.J. 275, 304-05 (2011) (internal citations omitted).]
A party claiming summary judgment is premature must "demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action." Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (internal quotation marks and citation omitted); see also Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) (party "must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete."). Plaintiffs have failed to do so.
Furthermore, by cross-moving for summary judgment, plaintiffs waived the incomplete-discovery argument. "The filing of a cross-motion for summary judgment generally limits the ability of the losing party to argue that an issue raises questions of fact, because the act of filing the cross-motion represents to the court the ripeness of the party's right to prevail as a matter of law." Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 177 (App. Div.), certif. denied, 196 N.J. 85 (2008).
B.
Turning to the statute of limitations, we agree with the trial court that plaintiffs' claims based on statements made before May 18, 2009 were time-barred. Actions for libel or slander must be commenced within one year of publication. N.J.S.A. 2A:14-3. We reject plaintiffs' argument that defendant engaged in a continuing pattern of defamation that tolled the statute until the last publication.
Plaintiffs rely on the "continuing violation" doctrine, which provides that when a plaintiff "is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases." Wilson v. Wal-Mart Stores, 158 N.J. 263, 272 (1999). Our courts have never applied the continuing violation doctrine to defamation claims, and have only applied it to hostile work environment claims under the Law Against Discrimination, and continuing nuisance claims. See Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 18-22 (2002) (hostile work environment); Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 125 (App. Div. 2014) (continuing nuisance). Courts in other jurisdictions have uniformly declined to apply the continuing violation doctrine to defamation. See Amobi v. D.C. Dep't of Corr., 755 F.3d 980, 994 (D.C. Cir. 2014) (applying D.C. law); McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 710 (10th Cir. 2012) (applying Wyoming law); Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002); Smith v. IMG Worldwide, Inc., 437 F. Supp. 2d 297, 304-05 (E.D. Pa. 2006); Card v. Pipes, 398 F. Supp. 2d 1126, 1133 (D. Or. 2004); Lewis v. Gupta, 54 F. Supp. 2d 611, 616 (E.D. Va. 1999); Scott v. Zaheri, 157 So.3d 779, 786-87 (La. Ct. App. 2014); Selkirk v. State, 671 N.Y.S.2d 824, 825 (App. Div. 1998); Rosenbaum v. Chronicle Telegram, 2002 Ohio App. LEXIS 7189, at *13 (Ohio Ct. App. 2002).
We decline to extend the doctrine to defamation. A continuing tort by its nature "involves repeated conduct" and occurs over a period of time; it cannot be distilled to one discrete act giving rise to the cause of action. Shepherd, supra, 174 N.J. at 19. A claim for defamation, by contrast, is based on a single act: the publication of a defamatory statement. The claim accrues "immediately upon the occurrence of the tortious act." Flowers, supra, 310 F.3d at 1126.
Applying the continuing tort doctrine in this case would also be at odds with the single publication rule, which provides that a statement posted on the internet is deemed to only be published once for purposes of the statute of limitations; the limitations period does not restart every time the post is viewed. Churchill, supra, 378 N.J. Super. at 479-83. Furthermore, our Supreme Court is generally reluctant to relax the statute of limitations governing defamation. See NuWave Inv. Corp. v. Hyman Beck & Co., Inc., 221 N.J. 495, 500 (2015) (declining to apply discovery rule to defamation claim, holding the statute's "clear and unqualified language" requires all libel claims to be made within one year of publication).
In sum, the court correctly dismissed as time-barred plaintiffs' defamation claims based on the three statements made in the September 1, 2008 and February 27, 2009 blog posts.
C.
As for the statements that are not time-barred, we conclude they were non-actionable opinion. There are three elements of a cause for defamation: "'(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher.'" Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009) (quoting DeAngelis v. Hill, 180 N.J. 1, 13 (2004)). "To determine if a statement has a defamatory meaning, a court must consider three factors: '(1) the content, (2) the verifiability, and (3) the context of the challenged statement.'" Ibid. (quoting DeAngelis, supra, 180 N.J. at 14).
Plaintiffs identify additional allegedly defamatory statements in their appellate brief that they did not cite in their complaint. We therefore decline to consider them. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In considering verifiability, our courts have drawn a line between opinions, which are not actionable, and statements of fact, which are. "A statement's verifiability refers to whether it can be proved true or false." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167 (1999). A statement is actionable if it "'suggested specific factual assertions that could be proven true or false.'" Leang, supra, 198 N.J. at 585 (quoting DeAngelis, supra, 180 N.J. at 14). Statements of opinion are usually not actionable, as opinions "'are generally not capable of proof of truth or falsity because they reflect a person's state of mind[.]'" NuWave Inv. Corp. v. Hyman Beck & Co., 432 N.J. Super. 539, 553 (App. Div. 2013) (quoting Ward, supra, 136 N.J. at 531), aff'd, 221 N.J. 495 (2015). But an opinion is actionable if "it implies 'reasonably specific assertions' of 'underlying objective facts that are false.'" Ibid. (quoting Ward, supra, 136 N.J. at 531).
"Loose, figurative or hyperbolic language is not likely to imply specific facts" and thus is generally not actionable. Lynch, supra, 161 N.J. at 167-68. Similarly, "epithets, insults, name-calling, profanity and hyperbole" are not actionable. DeAngelis, supra, 180 N.J. at 14. "The higher the fact content of a statement," the more likely it is actionable. Lynch, supra, 161 N.J. at 168 (internal quotation marks and citation omitted).
Statements "falsely attributing criminality to an individual [are] defamatory as a matter of law." G.D., supra, 205 N.J. at 293 (internal citation omitted) (flyers referring to G.D. as a convicted drug dealer were defamatory); see also Lawrence v. Bauer Publ'g & Printing, 89 N.J. 451, 456, 459-60 (statement that two men might be charged with forgery was defamatory), cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982). Yet, this does not mean that using a word that is also the name of a crime necessarily accuses the person of committing that crime. Rather, the word must be considered in context, focusing on "the listener's reasonable interpretation" of the statement. Leang, supra, 198 N.J. at 585. Context includes "the identity of the speaker and the targeted audience[,]" Senna v. Florimont, 196 N.J. 469, 492-93 (2008), or "the section of a newspaper in which an article appears," Lynch, supra, 161 N.J. at 168 (internal citation omitted).
Applying these principles, we consider first defendant's comment that Roberts lived in "a run down farm house" with six children. This merely conveys defendant's opinion of Roberts's home, and is therefore not actionable.
The two remaining statements present a closer issue. As noted, in the April 27, 2010 post, defendant called plaintiffs "grifters" and their business a "fraudulent puppy mill ring." The May 3, 2010 post alleged that defendant "frequently" received messages from "others" who also "were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them."
We recognize that words like "grifters," "scammed," and "fraudulent" can be used to describe unscrupulous or deceptive business practices, and a "puppy mill" is a facility where puppies are bred, usually in inhumane conditions. However, our concern is not the meaning of these words in isolation, but rather their meaning in the context in which defendant said them. Leang, supra, 198 N.J. at 585. And three elements of context lead us to conclude that a reasonable reader would not take defendant's use of these words literally.
First, the words immediately surrounding these terms include sarcastic quips like "Despite a down economy, it appears that business for the dog grifting team of [Roberts and Abrams] is booming," and derisive insults such as "nefarious individuals," "despicable human beings," and "cronies." Second, defendant's invective grew more disparaging in response to comments left by readers claiming to be plaintiffs, which attacked defendant using incendiary language. The parties' exchange of insults suggests a reader would view defendant's words as barbs, hyperbole, and opinion — not fact.
Perhaps most importantly, defendant made these statements under the heading, "Rants and Raves," signaling to any reader that what followed were the author's personal viewpoints. See Summit Bank v. Rogers, 142 Cal. Rptr. 3d 40, 60 (Ct. App. 2012) (fact that statements appeared in section of website entitled "Rants and Raves" indicated a reader would "view them with a certain amount of skepticism" and understand that "they will likely present one-sided viewpoints rather than assertions of provable facts"). That impression is reinforced by the fact that few of the blog posts included in this record are factual in nature. Given the profanity-laden, emotionally-charged context in which defendant used "grifters," "scammed," and "fraudulent puppy mill," a reader would not reasonably understand defendant as charging plaintiffs with a crime or fraud. Instead, a reasonable reader would interpret these statements as name-calling and hyperbole. See Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 1542, 26 L. Ed. 2d 6, 15 (1970) (stating that "even the most careless reader" would have interpreted an accusation of "blackmail" in the context of public negotiations as "rhetorical hyperbole").
Additionally, defendant did not assert specific, verifiable facts to support claims that plaintiffs operated a "fraudulent puppy mill" or "scammed" their customers. See Dice v. Johnson, 711 F. Supp. 2d 340, 360-61 (M.D. Pa. 2010) (accusation that someone was a "notorious puppy broker" was not defamatory); NBC Subsidiary (KCNC-TV) v. Living Will Ctr., 879 P.2d 6, 12 (Colo. 1994) (statement that company that sells living will forms is a "scam" was not defamatory because it did not imply "a verifiable fact" nor could "it reasonably be understood as an assertion of actual fact."). In the absence of "underlying objective facts" that could be proven true or false, defendant's accusations are more accurately classified as opinions. See Ward, supra, 136 N.J. at 531.
Although defendant arguably asserted such facts in 2008, those statements are time-barred.
We find compelling one commentator's observation that "verifiability often becomes intertwined with linguistic analysis; a lack of 'precise meaning,' such as for the word 'scam,' renders the description of a transaction as a scam 'incapable of being proven true or false.'" Nat Stern, Defamation, Epistemology, and the Erosion (But Not Destruction) of the Opinion Privilege, 57 Tenn. L. Rev. 595, 615 (1990); see also Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 936-37 (2000) (suggesting that words like "scam" are often used loosely and should not be taken literally). --------
In conclusion, the court properly dismissed plaintiffs' claims, as defendant's statements were non-actionable opinion, hyperbole, and epithets. Having concluded that plaintiffs' claims were properly dismissed on this ground, we need not address whether defendant's statements involved matters of public concern, imposing on plaintiffs the heightened burden to prove actual malice. Plaintiffs' arguments with respect to the denial of their request for a preliminary injunction and their cross-motion for summary judgment lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
We turn to the fee sanction, which we review for an abuse of discretion. Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.), certif. denied, 200 N.J. 502 (2009). An abuse of discretion occurs "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005) (affirming award of sanctions).
N.J.S.A. 2A:15-59.1 and Rule 1:4-8 permit a court to impose sanctions on a litigant and an attorney, respectively, for filing a frivolous complaint. To find a claim frivolous under the statute, the court must find that it was pursued in "bad faith, solely for the purpose of harassment, delay or malicious injury," or that the non-prevailing party knew or should have known it was pursued "without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b). The Court Rule uses essentially the same standard, i.e., a claim or defense is frivolous if asserted for an improper purpose, or if it lacked a factual or legal basis. See R. 1:4-8(a). We strictly interpret the statute and the rule against the imposition of sanctions. See LoBiondo v. Schwartz, 199 N.J. 62, 99 (2009).
The court must state its reasons for finding that a claim was frivolous. Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 406 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). The fact that a defendant's dispositive motion was granted does not alone establish that the plaintiff's claim was frivolous. "Simply because some of the allegations made at the outset of litigation later proved to be unfounded does not render the complaint frivolous." McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 499 (App. Div. 2011) (internal brackets, citation and quotation marks omitted); see also Ferolito, supra, 408 N.J. Super. at 408 ("a grant of a motion for summary judgment in favor of a defendant, without more, does not support" imposition of sanctions against a plaintiff).
In imposing sanctions against plaintiffs and their attorney, the trial court simply reiterated its reasons for granting summary judgment, but did not explain why plaintiffs' claims were "frivolous." This does not suffice. As noted above, the court may not rely solely on the fact that defendant was entitled to summary judgment to find that the non-prevailing party's claims were frivolous. See Ferolito, supra, 408 N.J. Super. at 408; McDaniel, supra, 419 N.J. Super. at 499; R. 1:7-4.
In our view, plaintiffs' claims were not frivolous under the statute or rule. As our analysis shows, when a defamation claim is premised on an accusation of "fraud," "grift," or a "scam," the line between opinion and fact can be unclear. On the one hand, these words can be used figuratively (e.g., as insults), and "figurative or hyperbolic language" generally is not actionable. Lynch, supra, 161 N.J. at 167. On the other hand, if used in the literal sense, these words qualify as statements "attributing criminality to an individual," which are "defamatory as a matter of law." See G.D., supra, 205 N.J. at 293. There are no categorical rules that neatly place each of these words into either the "opinion" or "fact" bucket. Although we conclude defendant's statements were not actionable, plaintiffs' contention to the contrary was not "frivolous."
Further, plaintiffs had a good faith basis for their position that their claims should not be subject to the actual malice standard. The trial court found that defendant's statements involved a matter of public concern, triggering the requirement that plaintiffs prove defendant made the statement with actual malice. See Senna, supra, 196 N.J. at 496. It is debatable, to say the least, whether defendant's non-media posts about the private sale of a dog involved a matter of public concern. See id. at 496-97 (distinguishing media and non-media speakers with respect to whether the speech involves a matter of public concern and holding that matters of public concern include, for example, "speech concerning significant risks to public health and safety").
We also disagree with the trial court that plaintiffs lacked a good faith basis for arguing the continuing violation doctrine should toll the statute of limitations. Although we rejected this argument, the issue whether the doctrine applies to defamation had not previously been addressed by our courts. The trial court acknowledged as much by describing as "novel" the issue of "the application of the statute of limitations to internet postings and the question of whether each posting is a separate event." Because the law was unsettled in this area and there was some logic to plaintiffs' position, we cannot say that they lacked "a good faith argument for an extension, modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b)(2).
In addition, the court mistakenly exercised its discretion in imposing sanctions jointly against plaintiffs and their counsel. When a prevailing party seeks sanctions against an attorney under Rule 1:4-8 and against a party under N.J.S.A. 2A:15-59.1, it is incumbent upon the court to consider the respective responsibility of each. Savona v. Di Giorgio Corp., 360 N.J. Super. 55, 63 (App. Div. 2003).
Importantly, a sanction may not be imposed against a represented party unless the court finds that the party acted in bad faith in pursuing the unsuccessful claim. Ferolito, supra, 408 N.J. Super. at 408. The court may not impute the attorney's pursuit of a frivolous claim to the client. Rabinowitz v. Wahrenberger, 406 N.J. Super. 126, 136-37 (App. Div.) (reversing fee sanction against client and attorney, concluding it should apply only against the attorney), appeal dismissed, 200 N.J. 500 (2009). Absent a finding that plaintiffs acted in bad faith, there was no basis for the court to hold them jointly liable for the $25,000 fee sanction.
Furthermore, a sanction against an attorney under the Rule "shall be limited to a sum sufficient to deter repetition of such conduct." R. 1:4-8(d). It may include a penalty paid to the court, an award of some or all of the reasonable attorneys' fees of the aggrieved party, or both. Ibid. Here, the trial court made no finding regarding what was necessary to deter plaintiffs' attorney's conduct.
Finally, defendant's sanctions motion was not supported by a certification of services, as required by N.J.S.A. 2A:15-59.1. Rule 1:4-8(b)(1) similarly requires a certification attesting to compliance with the notice-and-demand requirement. Defendant's failure to file a certification meeting the prerequisites of the statute and rule precluded the trial court from awarding any fees.
Affirmed as to the dismissal of plaintiffs' complaint. Reversed as to the award of sanctions. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION